A recent British Columbia Supreme Court judicial review, HEU v. BCLRB et al., 2005 BCSC 1369, examines some of the preliminary issues underlying a lawsuit by members of the public for damages suffered due to a strike by the Hospital Employees’ Union (HEU). The case concerns HEU’s dispute of a Labour Relations Board decision that paved the way for a damages claim arising from HEU strike activity.

Briefly, in April of 2004 HEU was on lawful strike. On April 29, 2004, the BC government legislated HEU back to work for April 29, 2004. The workers didn’t go back. The employers applied for, and obtained, an order from the Labour Relations Board putting an end to the work stoppage for April 30, 2004. Union members returned to work on May 3, 2004. Five members of the public had surgeries scheduled for April 30. The procedures were cancelled and these individuals now intend to sue for damages resulting from the cancellations.

The case centers on Section 137(4) of the Labour Relations Code, R.S.B.C. 1996, c. 244, which allows for a damage claim where the Labour Relations Board determines there has been a contravention of Part 5 of that Act. The members of the public denied the surgical procedures appeared before the Labour Relations Board and were successful in obtaining a determination that Part 5 had been contravened. That decision was confirmed upon reconsideration.

The judicial review and the proceedings leading up to it, examine some very interesting issues such as the constitutionality of “political protest” strikes and the standing of members of the public to obtain the prerequisite order from the Labour Relations Board and bring a further action in damages.

The HEU’s judicial review was dismissed and it now remains to be seen how the damages claim will be framed and pursued.